LESBIAN/GAY LAW NOTES
March 1994
Lesbian & Gay Law Association of Greater New York
Editor-in-Chief: Professor Arthur S. Leonard, New York Law
School, 57 Worth Street, New York, N.Y. 10013
ASLeonard@aol.com
Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340,
NYC 10003. 212-353-9118
(C) 1994 by Lesbian & Gay Law Association of Greater New York
ISSN 8755-9021
Contributing Editor:
Colin Crawford, Instructor, Brooklyn Law School.
Contributing Writers:
Kevin Isom, Esq., Atlanta
Steven Kolodny, Esq., New York
Barnaby Millard, Esq., New York
Todd V. Lamb, Student, NY Law School
Robert Bourguignon, Student, Brooklyn Law School
Mary Ann LeFort, Student, Brooklyn Law School
SECOND CIRCUIT UPHOLDS INDIVIDUAL'S RIGHT TO HIV PRIVACY
The 2nd Circuit Court of Appeals reversed a U.S. District Court
decision on Feb. 1 and reinstated a civil rights complaint
brought by John Doe against the City of New York Commission on
Human Rights ("HRC"), asserting that the HRC violated Doe's
constitutional right to privacy by revealing to the public the
details of a conciliation agreement which settled an HIV
discrimination complaint Doe had lodged with the HRC against
Delta Air Lines, Inc. ("Delta").
In Doe v. City of New York, 63 Fair Empl. Prac. Cas. (BNA) 1117,
1994 WL 24213, Doe argued that the disclosure by the HRC, made
pursuant to city law, caused him to be the victim of
discrimination and resulted in embarrassment and ostracism. Doe
also alleged a violation of his constitutional right to privacy
pursuant to 42 U.S.C. sec. 1983. The conciliation agreement
signed by Doe and the HRC contained a confidentiality clause
protecting Doe's name from disclosure without his written
consent. However, the HRC issued a press release disclosing the
terms of the agreement, and Doe alleged that the release, while
not stating his name, contained sufficient information to allow
those who knew or worked with him to identify him as the
individual described in the release.
The district court dismissed Doe's complaint, finding that the
settlement agreement was a public record in which Doe could have
no reasonable expectation of privacy, and that there was no
constitutional violation. The district court held that Doe's HIV
status had been made a matter of public record once he filed his
complaint with the HRC, and that sec. 8-115(d) of the N.Y.C.
Administrative Code provides that conciliation agreements "shall"
be made public "unless the complainant and respondent agree
otherwise." The court of appeals analyzed two questions: First,
whether Doe had a constitutional right to privacy in his HIV
status, and second, whether that right was waived when he brought
his discrimination complaint before the HRC, thus making his HIV
status a matter of public record.
In clear and unambiguous language, the court of appeals held,
relying on Whalen v. Roe, 429 U.S. 589 (1977) and other cases,
that "there is . . . a recognized constitutional right to privacy
in personal information," which can be characterized as a right
to "confidentiality," as distinguished from the right to personal
autonomy and independence in decision-making that the Whalen
court had recognized. In the context of medical information, the
court recognized that few matters are as personal as the status
of one's health, and said that "an individual's choice to inform
others . . . is one that she should normally be allowed to make
for herself." Judge Altimari wrote, "An individual revealing
that she is HIV seropositive potentially exposes herself not to
understanding or compassion but to discrimination and
intolerance, further necessitating the extension of the right to
confidentiality over such information. We therefore hold that
Doe possesses a constitutional right to confidentiality under
Whalen in his HIV status."
Having found that Doe's right to confidentiality was
constitutionally protected, the court then analyzed whether Doe
waived the right by entering into a conciliation agreement with
the HRC. Judge Altimari found that sec. 8-115(d) should not be
given the absolute reading promulgated by the city, which argued
that it requires the automatic public disclosure of all
conciliation agreements. The court determined that, since the
statute gives the HRC discretion to determine if disclosure is
not required, it was not the statute which was objectionable,
but, rather, the exercise of discretion by the HRC to reveal
Doe's conciliation agreement, despite what the Court termed both
parties' "obvious" preference that the details remain
confidential. The court noted that the effect of the city's
argument was that an individual who sought to vindicate his human
and civil rights through the HRC then automatically gave up any
rights of privacy he might have regarding his claim, and that the
protection of privacy rights was included among those rights the
HRC was supposed to protect. "An Orwellian statute that
mindlessly and indifferently mandated that any and all
information provided to the [HRC] automatically became a public
record -- even in cases where the reason the complainant went to
the [HRC] was because of a violation of a right to privacy --
would be patently inconsistent with the protection of individual
privacy rights, and thereby inconsistent with the purposes of the
Commission."
However, Judge Altimari held that a question remained whether the
city had a "substantial interest" in issuing the press release
announcing the conciliation agreement that would outweigh Doe's
privacy interest, so the matter had to be remanded for trial of
Doe's claim. B.M.
The 2nd Circuit's decision in Doe comes at a crucial time, as
legislators in New York are debating a proposal that would, in
effect, constitute mandatory HIV testing, with some disclosure to
third parties, of the mothers of all newborn infants in the
state.
At present, all newborns are tested for HIV anonymously as part
of an epidemiological study. Voluntary HIV testing is offered to
many pregnant women in prenatal care and to newborns, but some
mothers do not consent to testing. Under the legislative
proposal, the anonymity would be abandoned, and test results
would be mandatorily released to the parents of the child, under
the rationale that this would provide the basis for early
treatment and prophylaxis against pneumocystis pneumonia. Only
about 20 to 30 percent of HIV+ newborns are actually infected
(among the uninfected, antibodies picked up from their mothers
clear their systems within a few months of birth), but all
mothers of HIV+ newborns are infected, so the proposal would
result in mandatory disclosure of the mother's HIV status to the
father and treating physicians -- a step strongly opposed by AIDS
advocacy groups (including the state's AIDS Advisory Council),
who are pushing for increasing emphasis on counselling and
voluntary HIV testing for pregnant women. The advocacy groups'
position was strengthened by a recent study showing that
administration of AZT to women during pregnancy appears to reduce
substantially the proportion of newborns born with actual HIV
infection.
The 2nd Circuit's holding suggests the legislation is
constitutionally suspect, since the mothers have a right of
privacy with respect to disclosure of their HIV status. Under
the court's ruling, the key issue would be whether the state has
a "substantial interest" in mandating this disclosure that would
outweigh the mother's privacy right. A.S.L.
LESBIAN/GAY LEGAL NEWS
Supreme Court Denies Review to Gay Foreign Service Officer
Continuing its refusal to deal with claims of anti-gay employment
policies of federal agencies, the Supreme Court announced Feb. 22
that it denied a petition for certiorari in Krc v. United States
Information Agency, No. 93-599. In April, the D.C. Circuit
rejected Jan Krc's claim that homophobia was behind his
discharge. 989 F.2d 1211 (D.C.Cir., Apr. 9, 1993), rehearing
denied, 998 F.2d 1040 (D.C.Cir., Jul. 23, 1993). The agency
claimed it fired Krc because he had gay affairs with foreign
nationals while posted overseas. Krc asserted that his sexual
relationships, lawful in the countries where he was posted, did
not affect his ability to perform and did not compromise
security. Dissenting from the D.C. Circuit decision, Circuit
Judge Patricia Wald found that Krc presented ample evidence that
he was discharged because he is gay, without reference to whether
he had engaged in sexual activities, and accused her colleagues
of a "startling" reversal of their reasoning from an earlier
opinion in the case, 905 F.2d 389 (D.C.Cir. 1990), which had in
essence found that homosexual orientation was a reason for the
discharge and remanded for trial. In light of Wald's strong
dissent (characterized as "scathing" in BNA's Daily Labor
Report), the Supreme Court's refusal to review the case provides
strong evidence of a continuing distaste by the Court for getting
involved with gay issues. A.S.L.
Nebraska Supreme Court, Texas Court of Appeals, Reject Homosexual
Panic Defense in Murder Cases
In State v. Escamilla, 1994 WL 22412 (Nebraska Sup. Ct., Jan.
28), Mario Escamilla, who pled guilty to first degree murder,
sought post-conviction relief, alleging his defense counsel
failed to investigate allegations of the victim's homosexuality
before advising him to plead guilty. Escamilla argued that
evidence of the victim's homosexuality would have supported a
claim of absence of premeditation. The district court granted
Escamilla's motion, and the state appealed to the Supreme Court,
which reversed.
According to his confession, Escamilla was walking past the
victim's house when the victim asked if he were lost. Escamilla
asked to use the victim's phone. While he was using the phone,
the victim locked the door, approached him from behind, and
rubbed against him. Escamilla, claiming that a recollection of
having been raped as a 6-year old fueled his reaction, picked up
a knife on the kitchen counter and stabbed the victim in the
neck. Escamilla claimed the victim expressed eagerness to have
sex with him and offered to do anything he wanted. Escamilla
ordered the victim to take down his pants, mounted the victim,
took down his own pants, and rubbed against the victim,
continuing to stab him, until he fled the scene. The police
discovered pubic hair (similar to Escamilla's) on the victim's
posterior. The knife matched a knife from the house where
Escamilla was staying. Escamilla's attorney recommended he plead
guilty to avoid a death sentence.
Writing for the court, Chief Justice Hastings examined the
admissability of such evidence in connection with a homosexual
panic defense on the issue of premeditation. In Kagebein v.
State, 496 S.W.2d 435 (Ark. 1973), the Arkansas Supreme Court
considered whether a defendant could call witnesses to testify as
to prior homosexual acts by the victim to corroborate defendant's
claim that homosexual activities preceded the killing, as
relevant to determination of the degree of murder committed.
That court referred with favor to Evans v. U.S., 277 F.2d 354
(D.C. Cir. 1960), where the court held that almost any evidence
on the victim's character would be highly relevant to determine
whether the defendant's claim of sexual assault was truthful;
even if acquittal was not justified, evidence suggesting the
victim was the aggressor might induce a jury to convict of a
lesser offense. The dissent in Evans argued that since the
defense offered was the need to kill the victim in resisting a
sexual assault, general evidence of a victim's prior homosexual
acts was too tenuous, and the dissent attached no significance to
the possibility a jury could convict of a lesser offense.
Similarly, writing separately in Parisie v. Greer, 702 F.2d 888
(7th Cir. 1983)(en banc), cert. denied, 464 U.S. 950, Judge
Richard Posner defined the "homosexual panic" defense as the idea
that a person who is a "latent homosexual" but a manifest
homophobe can be so upset by homosexual advances that he becomes
temporarily insane, in which state he may kill the homosexual.
Posner said he could not believe the Constitution requires a
state to allow defense counsel in a murder case to "defame" the
victim as a homosexual without satisfying the prerequisites to
admitting evidence of reputation. A minority of the Parisie
court concluded that evidence of the victim's homosexuality would
be relevant under Illinois law, claiming the victim's
homosexuality make it likelier he made a homosexual advance
toward the defendant.
Noting that Nebraska does not specifically allow the defense of
"homosexual panic," Hastings nonetheless concluded that where a
defendant claims the act of killing a victim resulted from a
violent and overriding reaction to the victim's homosexual
approach, evidence of the victim's prior similar activities may
be admissible under certain circumstances as corroborative of the
defendant's claim that there was lack of deliberation or
premeditated malice. "In this case," wrote Hastings, "the only
evidence suggested to exist is that the victim was a pedophile.
We fail to see any relevancy between pedophilic behavior and
Escamilla's claim that he received a homosexual proposal. There
was no scientific testimony offered by Escamilla which supported
his claim of `homosexual panic.'" The court remanded with
instructions to dismiss Escamilla's action for post-conviction
relief. K.I. & A.S.L.
In Schultz v. State, 1994 WL 35576 (Tex.App.-Houston, Feb. 10),
the evidence showed that Aubrey Schultz was out one night in the
Montrose neighborhood and hitched a ride with Eugene Schaff, who
invited him home for a drink. In his apartment, Schaff asked
Schultz "if he were into bondage and stated his interest in
pursuing other homosexual activity." Schaff responded
negatively, threw an ashtray at Schaff, and then stabbed him
twenty-five times (although Schultz testified he only remembered
stabbing Schaff five times). Schultz changed out of his bloody
clothes into clean clothes from Schaff's apartment, took Schaff's
ring, watch, wallet, stereo, VCR and car and fled. He was later
apprehended and convicted of murder. On appeal, Schultz claimed
the trial judge erred by refusing to charge the jury on a "lesser
included offense" of aggravated assault, claiming he was acting
in "self defense." The court of appeals disagreed, finding that
Schultz's actions "were of a deliberate nature," and that even if
the jury believed Schultz's testimony about the number of stab
wounds he inflicted, that would "clearly satisfy the definition
of murder as an act clearly dangerous to human life," and noted
that the trial judge had instructed the jury on self-defense.
The appeals court also rejected the contention that Schultz's
confession had been erroneously admitted in evidence. * * * On
Feb. 7, the Tennessee Supreme Court also rejected a homosexual
panic defense in State v. Brimmer, 1994 WL 37755. A.S.L.
Oklahoma High Court Vacates Death Sentence for Lesbian While
Upholding Conviction for Murdering Her Partner
While upholding a jury verdict that Wanda Jean Allen committed
first degree murder in shooting Gloria Leathers, with whom she
had been involved in "a homosexual relationship," the Court of
Criminal Appeals of Oklahoma (the state's highest court for
criminal cases) ruled Feb. 15 in Allen v. State, 1994 WL 44313,
that the trial court had incorrectly instructed the jury on the
connected charge of "possession of a firearm after former
conviction," requiring a reversal and remand on that charge.
Since the possession charge was one of two aggravating factors
found by the jury to justify a death sentence, the death sentence
was also overturned as a consequence of the reversal. However,
the court, in an opinion by Presiding Judge Lumpkin, rejected
Allen's claim that the trial court had improperly dealt with her
claim of self-defense.
According to the court, Allen and Leathers had been engaged in a
relationship, but Leathers wanted out. She was afraid that Allen
would assault her, so she secured the assistance of some police
officers to come with her to their home while she gathered her
things. The two women got into an altercation as Leathers was
gathering her things, during which Leathers allegedly attacked
Allen with a gardening implement. At the police officers'
suggestion, Leathers then left for the police station. Allen
followed in her own car and when both women got out of their cars
at the police station, Allen attempted to get Leathers to
reconsider her decision. In the course of this confrontation,
Allen shot Leathers in the stomach. Allen fled, throwing her
illegal pistol in a dumpster, and was not apprehended until
several days later, the same day Leathers died from the gunshot
wound.
At trial, the prosecution attempted to show that Allen was the
"man" in their relationship, and painted Leathers as a timid,
feminine woman. Allen asserted a self-defense claim, pointing
out that Leathers had attacked her in their prior altercation and
allegedly made threats to assault her in the future. Both women
apparently had past encounters with the law.
Dissenting from the court's affirmance of the murder conviction,
Judge Lane argued that the trial judge had improperly instructed
the jury on the self-defense claim. Since the trial judge found
that Allen presented sufficient evidence to raise the defense,
the judge should have told the jury that this shifted to the
State the burden to disprove the claim of self-defense beyond a
reasonable doubt. However, said Lane, the appeals court
incorrectly substituted its judgment for the trial judge and
found that the burden hadn't shifted. "The simple truth is the
record supports the trial court's decision that the defendant
raised the theory of self defense. . . The most serious error is
the failure of the trial court to instruct on the State's
shifting burden. This error requires reversal and remand to the
district court for new trial." Lane was also critical of the
majority's "finding the evidence the appellant was the `man' in
her lesbian relationship has any probative value at all. Were
this a case involving a heterosexual couple, the fact that a male
defendant was the `man' in the relationship likewise would tell
me nothing. I find no proper purpose for this evidence, and
believe its only purpose was to present the defendant as less
sympathetic to the jury than the victim." A.S.L.
California Appeals Court Rejects Lesbian Co-Parent Custody
Challenge; Other Lesbian/Gay Family Law Notes
In yet another of a string of adverse decisions on attempts by
lesbian co-parents to maintain parental ties after the split-up
of a relationship, the California Court of Appeal, 1st District,
ruled in Georgia P. v. Kerry B. that a written agreement between
the parties was not an enforceable contract and could not be used
to overcome existing precedents under which the non-birth mother
has no standing to contest custody. The decision, made public
Feb. 1, is not yet published. According to an A.P. report in the
San Francisco Sentinel of Feb. 9, the couple's written agreement
provided that they intended to "jointly and equally parent the
child" and would refer any dispute to binding arbitration. They
separated five years after Kerry B. gave birth to a daughter
conceived through alternative insemination. They divided
parental responsibilities for another year, but then Kerry B.
claimed sole custody and moved to another county, cutting off
regular visitation for Georgia P., who sued seeking a declaration
of her parental rights, arbitration under the contract, and
damages for emotional distress. Sonoma County Superior Court
Judge Elaine Watters dismissed her claims, and was upheld in a
unanimous decision written by Presiding Justice Clinton White.
Courts are reluctant to recognize private contracts that would
modify traditional family law doctrines, especially when it comes
to issues affecting the welfare of children. Although California
courts have recognized the concept of a "de facto" parent based
on an established parental relationship, they have not ordered
custody or visitation on behalf of an alleged "de facto" parent
when the child is living with a legal parent in the absence of a
showing of parental unfitness. "Custody of the child cannot be
awarded to Georgia against the wishes of Kerry without a finding
that parental custody would be detrimental to the minor," wrote
White. Under Nancy S. v. Michele G., 228 Cal.App.3d 831, 279
Cal.Rptr. 212 (Cal.App. 1st Dist. 1991) and Curiale v. Reagan,
222 Cal.App.3d 1597, 272 Cal.Rptr. 520 (Cal. App. 3d Dist. 1990),
California courts have firmly held that the non-birth mother in a
lesbian couple cannot assert parental rights. A.S.L. * * * The
Virginia Court of Appeals heard oral argument Feb. 16 in Bottoms
v. Bottoms, the notorious case in which Henrico County Circuit
Judge Buford M. Parsons awarded custody of Sharon Bottoms' son to
Bottoms' mother, Kay, on Sept. 7, 1993, holding that under
Virginia law a lesbian mother was presumptively unfit to have
custody of her son while living in a same-sex relationship.
Observers of the oral argument reported that some of the judges
gave a hard time to Kay's attorney, one even stating that the
comments in a 1985 Virginia Supreme Court case about gay parents
being unfit were merely dicta. A.S.L. * * * The Advocate reports
that legislative proposals are pending in South Carolina and
Washington State that would ban gays from adopting children. The
South Carolina measure passed the House of Representatives on
Jan. 13 by an overwhelming margin, and has the support of Gov.
Carroll Campbell. Sponsor Rep. Mike Fair claims, contrary to all
evidence on the subject, that gay and lesbian households are
"breeding grounds for future homosexuals." The Washington State
measure was introduced as a result of publicity about a case in
which a woman who had given up custody of her child tried to
regain it when she learned a gay male couple was seeking to adopt
the child. At present, the only states with legislative bans on
gays adopting children are New Hampshire and Florida. Adoptions
have been approved by numerous states, and last year the supreme
courts of Vermont and Massachusetts approved adoptions resulting
in the adoptee being the legal child of both same-sex parents. *
* * The Sentinel reports that Jay (Indiana) Superior Court Judge
Joel Roberts has awarded Twila Teegarden, a lesbian mother,
custody of her two children, in a battle with the children's
stepmother. Teegarden v. Teegarden (Feb. 3). The father was
awarded custody upon divorce, but was electrocuted in an
accident. Judge Roberts ruled that as between the natural mother
and the stepmother, the law prefers the natural parent if she is
fit for custody. However, Roberts placed some restrictions on
custody: Teegarden may not have a same-sex lover living with her
and may not engage in "homosexual behavior" in front of the
children. Teegarden has accepted these conditions. A.S.L.
Texas Appeals Court Upholds Convictions for Sale of Gay Sex
Magazines
In two decisions issued Jan. 25, the Court of Appeals of Texas,
Fort Worth, upheld convictions of T.K.'s Video, Inc., for
"promotion of obscenity" by the sale of gay-oriented sex
magazines. T.K.'s Video, Inc. v. State, 1994 WL 17368, 1994 WL
17370. The first case was based on sale to an undercover agent
of "Overload," described as "depicting homosexual intercourse."
T.K.'s appeal argued in a variety of ways that the magazine could
be found obscene only if it would be regarded by the average gay
male reader to whom it is directed as appealing to prurient
interest in an offensive way. T.K.'s contended that the
evidence, which lacked this gay perspective, was insufficient to
support the conviction, and that the judge had improperly
instructed the jury by failing to require the jury to consider
the magazine from this perspective. Rejecting T.K.'s argument,
Judge Lattimore wrote that "materials targeting deviant groups
are not beyond the scope of the obscenity laws just because they
appeal to the prurient interest of a sexual deviant rather than
the average adult. If we follow T.K.'s argument in a case
involving the obscenity of materials portraying adults engaged in
sexual intercourse with children, the trial court would be
required to instruct the jury that prurient interest would be
defined form the viewpoint of the average pedophile." To
document this point, the court cited U.S. v. Guglielmi, 819 F.2d
451 (4th Cir. 1987), in which the court held in a case involving
films depicting bestiality that the court was not required to ask
the jury to find whether there was such a thing as an average
zoophile and to determine the appeal of the films to such a
person.
In the second case, in which T.K.'s was convicted of selling to
an undercover agent the magazines "Buddies in Heat" and "The
Swingers" (a bisexual magazine), one basis for T.K.'s appeal was
the trial judge's refusal to excuse a potential juror, or to
allow T.K.'s an extra peremptory challenge to strike the juror,
one Williams. During voir dire, Williams said: "Although I don't
earn my living in this capacity, I am an ordained minister. And
I would struggle a little bit with how objective I could be."
After stating that he "could follow the law even if he thought it
was morally wrong," Williams responded to questioning by the
defense attorney by stating that he believed homosexuality was
"shameful, morbid and sick," and, as related in Judge Lattimore's
opinion for the court, "He stated that all homosexual material
appealed to a prurient interest in sex, and that he would have
trouble telling his congregation that he had found a sexually
explicit, homosexual magazine legal." Responding to a final
question, Williams said that he would find it a struggle but he
thought he could be fair. Upholding the trial judge's decision
to seat Williams on the jury, Lattimore wrote: "Williams' strong
feeling about homosexuality, by itself, does not disqualify him
in a case involving homosexual material. Williams was asked if
he could follow the court's instruction to put aside his personal
opinions and to make his decision based upon the average person,
and he indicated that he could. While we agree with the trial
court assessment that this is a close case, we see nothing in the
record which points to an abuse of discretion. We hold that
Williams was not biased against T.K.'s as a matter of law."
In Coon v. State, 1994 WL 42465 (Feb. 15), the Texas Court of
Appeals, Fort Worth, upheld a misdemeanor conviction of Michael
Lynn Coon for obscenity, based on the sale of a gay skin
magazine, Stroke, in violation of Texas Penal Code sec. 43.23(c),
and approved the sentence of six months imprisonment and a $3,000
fine. Coon contended on appeal that the trial judge improperly
instructed the jury on the standard for determining whether a
gay-oriented publication is obscene. Coon argued that the jury
should have been instructed that in order to find whether the
material was "offensive," it would have to determine whether it
was offensive to the male homosexual population at which the
magazine was aimed. Writing for the court, Judge Farrar said
that Coon had misapprehended prior cases talking about the need
to consider the audience at which a pornographic publication is
aimed. The problem is that a heterosexual juror might not find
that gay pornography appealed to prurient interest; the purpose
of taking the audience into account is to have the juror decide
not whether the material appeals to the prurient interest of the
juror, but rather whether it would appeal to the prurient
interest of a gay reader. Farrar
asserted that "it is not necessary for jurors to have an
understanding of deviant group interests; the pornography speaks
for itself. . . The magazine contained photographs and
illustrations of homosexual oral and anal sex and group sex
between males. The officer who purchased the magazine and a
second police officer testified that in their opinion, the
average adult Texan would find the magazine appealed to prurient
interests, was patently offensive and lacked literary, artistic,
political and scientific merit." Farrar also rejected Coon's
objections to several of the trial court's rulings during voir
dire concerning questions to the jury about their knowledge or
understanding of the gay community. "After viewing the evidence,"
wrote Farrar, "we conclude a rational trier of fact could have
found the materials to be obscene, beyond a reasonable doubt,
without the assistant of an expert or testimony from a member of
the deviant group. . ."
Now Texas readers of Law Notes will understand why we don't send
the illustrated edition to their jurisdiction! A.S.L.
New York City Abandons ILGO in St. Patrick's Day Dispute
The City of New York agreed to abandon its past attempts to
require inclusion of the Irish Lesbian and Gay Organization
(ILGO) in the annual St. Patrick's Day parade run by the Ancient
Order of Hibernians. On Feb. 2, U.S. District Judge Kevin T.
Duffy (S.D.N.Y.) approved for filing a settlement agreement under
which his preliminary injunction issued last year in New York
County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F.Supp.
358, was made permanent "only so long as the parade retains its
character as a private celebration," according to a report in the
New York Law Journal. As part of the settlement, the City agreed
to pay the Hibernians $150,000 in legal fees. Judge Duffy had
ruled that the City's attempt to deny the Hibernians a permit to
hold the 1993 parade because of the Hibernians' decision to
exclude ILGO was "patently unconstitutional," finding that the
parade as administered by the Hibernians' was private, not
public, and constituted "a pristine form of speech" as to which
the parade sponsor had a right to control the content and tone.
The settlement negotiations, handled by the NY City Law
Department, were initiated in the fall prior to the mayoral
elections, and according to Assistant Corporation Counsel Peter
Moulton the settlement does not represent a change of policy by
the new administration. An ILGO spokesperson, Anne Maguire,
stated that ILGO plans to hold a protest march along the parade
route this year. A.S.L.
Court Upholds Stiff Penalty for Anti-Gay Housing Discrimination
In what is described by the New York Law Journal as the largest
monetary award ever made by the New York City Commission on Human
Rights (CHR), N.Y. Supreme Court Justice Leland DeGrasse affirmed
an award of $100,000 in damages and $75,000 in civil penalties
against a residential landlord found to have refused to renew a
gay man's lease and subjected him to harassment and retaliation
because of his sexual orientation. 119-121 East 97th St. Corp.
v. City of N.Y. Commission on Human Rights, NYLJ, 2/9/94, p. 22,
col. 3 (Sup. Ct., N.Y. Co.). DeGrasse denied the landlord's
petition to reverse CHR's order, and granted CHR's cross-petition
for enforcement.
Justice DeGrasse found that the record was "replete with evidence
of a prolonged pattern of discriminatory acts of harassment such
as interruptions of Mr. Baca's telephone and electricity
services, unlawful entries into his apartment, menacing telephone
calls, and vile name calling." The landlord retaliated against
Baca's filing a complaint with CHR by sending a "libelous letter"
to Baca's employer. "The relentlessness and prolonged duration
of petitioner's conduct supported CHR's finding that Mr. Baca was
subjected to extreme mental anguish," found DeGrasse, and "The
degree of malice exhibited by petitioners in their flagrant
violation of the Administrative Code also warrants the civil
penalty. . ."
Ironically, CHR has been targeted for dismantling by the Giuliani
Administration, which has designated a temporary chair to replace
outgoing Chair Dennis DeLeon (who is openly gay) and has proposed
reassigning those of the Commission's functions not duplicative
of the State Division of Human Rights (i.e., mainly its sexual
orientation jurisdiction) to the City Law Department. A.S.L.
Florida, Missouri High Courts Sustain Hate Crime Laws
In two similar though unrelated cases, State of Florida v.
Stalder, 1994 WL 19548 (Fla., Jan. 27), and State of Missouri v.
Vanatter, 1994 WL 17466 (Mo., Jan. 25), state supreme courts
upheld their respective state's hate crimes statutes, sec.
775.085, Florida Statutes (1989), and sec. 517.093, RS Mo. Supp.
1992. Each statute provides enhancement of sentencing upon
conviction of a stated list of criminal offenses where the trial
court finds that the crime was motivated, at least in part, by
animus related to the victim's race, color, religion, ethnic
origin, or in the Florida statute, ancestry or sexual
orientation. In Stalder, the underlying charge was one of
battery enhanced by repeated incidents of anti-semitic slurs. In
Vanatter, a less carefully thought-out opinion, the charge
involved a cross burning. (The underlying charge, apparently
arson, is never clearly stated in the opinion.)
In each case, the trial court granted the defendant's motion to
dismiss the enhancement charge as violative of the free speech
clauses of the U.S. and/or state constitutions. In each case,
the state supreme court reversed, rejecting arguments that the
statute in question prohibited expression of ideas based on
content, as was forbidden in R.A.V. v. City of St. Paul, 112
S.Ct. 2538 (1992), and found that the statute in question merely
allowed the trial court to consider animus as an aggravating
factor in sentencing, a practice approved by the Supreme Court in
Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993). However, in the
Florida case, the court additionally had to deal with a provision
providing penalty enhancement where the crime was not proven to
be motivated by bias but the perpetrator made biased remarks
during its commission. The court invalidated this portion of the
statute in reliance on R.A.V. S.K. * * * Two weeks after the
Florida Supreme Court announced its decision, the Florida
District Court of Appeal, 1st District, upheld the conviction of
Saun Reeves for violating the Hate Crimes Statute by "wantonly or
maliciously shooting a firearm into an occupied building on May
3, 1992, evidencing prejudice based on the sexual orientation of
the victim." Reeves v. State, 1994 WL 37029 (Feb. 11). A.S.L.
Domestic Partnership Notes
California Assemblyman Richard Katz of Sepulveda has introduced a
bill that would establish a statewide domestic partnership
registry in the office of the Secretary of State. Domestic
partners would be granted visitation rights in hospitals and have
the legal power to administer each other's affairs if one becomes
incapacitated, according to a report in the San Francisco
Chronicle of Feb. 15. In a companion bill, Katz proposes to
allow the state's retirement system to pay benefits to the
domestic partners of state employees who are covered by
collective bargaining agreements that include recognition of
domestic partners. * * * Responding to a complaint filed with the
NYC Human Rights Commission, the General Theological Seminary of
the Episcopal Church, located in the Chelsea neighborhood in
Manhattan, announced that it would open its school-owned
apartments to allow "committed" same-sex partners to live
together. Opposite-sex partners must be married to reside
together in the school's apartments. The complaint had been
filed by Deidre Good, a professor of New Testament, who was
threatened with eviction after her lesbian partner moved in with
her in seminary housing, according to N.Y. Newsday. * * * Faculty
agitation at the College of William and Mary for domestic
partnership benefits has stirred up a hornet's nest in the
Virginia General Assembly, where Republicans announced they would
attempt to amend pending budget legislation in order to prohibit
adoption of a domestic partnership plan by any state-funded
school in Virginia, according to the Washington Post. * * * The
Sentinel reports that the Seattle Times has adopted a domestic
partnership healthcare plan for its employees. * * * Newsday
reported that Time, Inc., is about to extend a domestic
partnership health plan to employees. A.S.L.
Justice Department Intervenes in Lesbian Harassment Matter
Responding to news reports that residents of Ovett, Mississippi,
have been engaging in a campaign of harassment and terror against
Brenda and Wanda Henson, two lesbians who bought a farm and plan
to establish a women's camp on the property, U.S. Attorney
General Janet Reno has ordered mediators from the Justice
Department's civil rights division to intervene and attempt to
mediate a resolution to the problem. Normally, such federal
mediation is only undertaken in cases involving violations of
federal civil rights laws, which never have been held to protect
individuals against anti-gay discrimination. Reno predicated
intervention in this instance on the use of the U.S. mail to send
threatening messages to the Hensons. According to the New York
Times, "officials at the Justice Department said that Ms. Reno's
decision was an important endorsement of gay rights." A.S.L.
Update on Anti-Gay Initiatives and Legislation
In what may be the first anti-gay referendum vote of the year,
voters in Springfield, Missouri, by a margin of 71 percent to 29
percent, repealed a bias crime bill that covered sexual
orientation. Although the entire law was repealed, the opponents
of the bill campaigned against it as a mini-gay rights bill,
waging a "special rights" campaign that emphasized fear of
pedophiles, according to the Washington Blade. * * * Missouri
Circuit Judge Byron L. Kinder ruled Jan. 31 that the Privacy
Rights Education Project, an organization formed to oppose a
Colorado-style initiative in Missouri, had jumped the gun by
asking the court to deal with various objections to petitions now
in circulation. Privacy Right Education Project v. Moriarty, No.
CV193-1200CC (Cir.Ct., Cole Co.). According to the court, the
plaintiff's objections will not be ripe for judicial resolution
until the petitioners have obtained their signatures and
submitted the petitions back to the state. The plaintiffs
maintain that the proposed ballot question violates the single
issue rule for initiatives. A substantive constitutional
challenge to the initiative, which is based on Colorado's
Amendment 2, may not be ripe until after a vote. * * * To similar
effect was a Feb. 16 ruling by King County, Washington, Superior
Court Judge Marsha Pechman, who rejected an attempt by Hands Off
Washington, a coalition of gay-rights groups, to nip in the bud
petition campaigns for Initiatives 608 and 610, which seek to
amend the Colorado constitution to ban gay rights laws, bar gay
couples from adopting children, and prohibit schools from
"promoting" or "supporting" homosexuality. Thurston County
Superior Court Judge Richard Strophy had previously approved
final language for both propositions, most recently on Feb. 14. *
* * On Feb. 8, Marion County, Oregon, Circuit Judge Albin W.
Norblad held that HB 3500, a state law passed last summer to
preempt counties and cities in Oregon from passing anti-gay
charter amendments, was a valid exercise of state legislative
authority. Ruling on a challenge to the law filed by Lon Mabon
and the Oregon Citizen's Alliance "No Special Rights" Committee,
Norblad commented: "This is one of the major policy issues that
the citizens of Oregon are dealing with today. . . There is no
doubt but that the Legislature has the right to, and did, pre-
empt this area." Norblad interpreted the state law to forbid
enactment of the anti-gay measures, but to allow enactment and
continued enforcement of local laws forbidding discrimination on
the basis of sexual orientation, which exist in Portland,
Corvallis, and Ashland. Norblad's decision conflicts with a
ruling by a Jackson County circuit judge, according to a comment
by the OCA's attorney reported in the Oregonian on Feb. 9, and
both cases are on appeal. Meanwhile, on Feb. 8 Multnomah County,
Oregon, election officials found that OCA had submitted enough
signatures to qualify a ballot measure in Gresham, but the City
Council may decide to keep the measure off the ballot in light of
the ruling on HB 3500, which could provoke a new OCA court
challenge. * * * In a letter to the Gay and Lesbian Victory Fund
date Feb. 14, President Bill Clinton came out strongly in
opposition to ballot initiatives that ban gay rights legislation.
The Fund had written to Clinton asking for his position on the
issue. Clinton said, "Those who would legalize discrimination on
the basis of sexual orientation or any other grounds are gravely
mistaken about the values that make our nation strong. . . The
essential right to equality must not be denied by a ballot
initiative or otherwise." * * * Arizona State Representative
Rusty Bowers has introduced a legislative proposal to amend the
Arizona constitution to ban municipalities from adopting sexual
orientation discrimination ordinances; at the same time, the
"Traditional Values Coalition of Arizona" is circulating
petitions to qualify a similar initiative. If Bowers' proposal
passes the legislature, it would automatically go on the ballot
without the need for petition signatures. Similar petition
campaigns are ongoing in Florida, Nevada, Idaho, Michigan,
Missouri, Oregon and Washington State, according to a chart
published in the Washington Blade of Jan. 28, and rumored to be
starting up in Ohio. However, anti-gay activists in Maine missed
the deadline to submit petitions to get their proposition on the
ballot for this year. A.S.L.
Miscellaneous Federal Litigation Notes
In Hicks v. Arthur, 1994 WL 27318 (U.S.Dist.Ct., E.D.Pa., Feb.
1), U.S. District Judge Joyner found that a discharge from
employment on the basis of sexual orientation does not violate
the public policy exception to the employment-at-will rule in
Pennsylvania. The public policy exception provides a cause of
action for damages for employees who are discharged in violation
of an articulated policy of the state. Joyner found that
Pennsylvania had no articulated policy on the subject of sexual
orientation discrimination by private employers. A.S.L. * * * The
U.S. 7th Circuit Court of Appeals ruled Feb. 1 that Chicago city
officials could not raise an immunity defense in Nelson v.
Streeter, 1994 WL 25767, in which art student David K. Nelson,
Jr., sued city officials for violating his civil rights by
seizing his painting on display at the School of the Art
Institute of Chicago and confiscating it. Nelson had painted a
portrait of then recently-deceased Mayor Harold Washington,
described as follows by Chief Judge Richard Posner: "The
painting, entitled `Mirth and Girth' and based on a rumor that
doctors at the hospital to which Washington had been brought when
he suffered his fatal heart attack had discovered that underneath
his suit he was wearing female underwear, is a full-length
frontal portrait of a portly grim-faced Harold Washington clad in
a white bra and G-string, garter belt, and stockings."
Exhibition of the painting evoked outrage from public officials;
the City Council passed a resolution condemning it, and several
aldermen went to the Art Institute, removed the painting, and
took it away. Nelson's lawsuit is a political hot potato that
the trial judge tried to duck by reference to a magistrate on the
immunity issue, which dragged out for several years. Posner held
that the immunity issue was simple: it should be perfectly clear
to any public official that they can't just go to a private
gallery and tear down and confiscate a painting they don't like.
On appeal, the aldermen claimed they were acting as private
citizens, and thus not bound by constitutional constraints. Well
and good, responded Posner, then you can't claim governmental
immunity from suit! "Official immunity is for officials.
President Truman could not have pleaded official immunity if a
music critic had sued him for intentional infliction of emotional
distress." Finding that there was no justification for the
district court's prolonged delay, Posner stated that it "is time
that the district judge took firm control of this case and guided
it to a swift conclusion." A.S.L. * * * The 7th Circuit Court of
Appeals unanimously ruled Feb. 8 in Canedy v. Boardman, 1994 WL
33784, that the Columbia Correctional Institution in Portage,
Wisconsin, violated the constitutional privacy rights of prisoner
David L. Canedy by requiring him to submit to strip searches by
female guards. While noting that some courts had disagreed with
this result, Circuit Judge Cudahy wrote that in balancing the
prisoner's right to privacy with the prison's desire to provide
equal employment opportunity to women, the balance went to the
prisoner except for emergency situations. A.S.L.
Miscellaneous State Litigation Notes
The California Supreme Court denied review in Engel v.
Worthington, 19 Cal.App.4th 43, 23 Cal.Rptr.2d 329 (Cal.App. 4th
Dist, Sept. 30, 1993), in which the court of appeals found that a
commercial photographer engaged in unlawful sex discrimination
when he excluded a gay couple's picture from a reunion book
produced for the University High School Class of 1977 reunion in
Irvine. Despite its decision to uphold the ruling for the gay
couple, the court ordered de-publication of the decision so that
it will not stand as a precedent, over the dissenting votes of
Justices Stanley Mosk and Joyce L. Kennard, according to the Los
Angeles Times. The gay couple was represented by Los Angeles
attorney Gloria Allred. A.S.L. * * * James Gautieri was
convicted of statutory rape, involuntary deviate sexual
intercourse (IDSI), and numerous other sex crimes for performing
oral sex on his 12 year old nephew. In Pennsylvania, statutory
rape occurs when a person over 18 has sexual intercourse with
another person who is less than fourteen years of age unless the
couple is married. IDSI is committed when one has anal or oral
sex with another person who is less than 16 years old. Gautieri
challenged his IDSI conviction, claiming that he could not be
prosecuted under both statutory rape and IDSI, and on grounds
that IDSI violates equal protection and privacy rights in the
Constitution. On Feb. 1, the Superior Court of Pennsylvania
disagreed. Commonwealth v. Gautieri, 1994 WL 27168. The court
found that the statutory rape statute does not "irreconcilably
conflict" with IDSI because statutory rape has elements outside
IDSI. To prove statutory rape the Commonwealth need only prove
that sexual intercourse occurred, IDSI requires specific proof
that anal or oral sex occurred. Gautieri's equal protection and
privacy claims also failed under the court's analysis because
IDSI deals with involuntary rather than voluntary acts and the
Commonwealth has a compelling interest in protecting people from
being forced to have anal or oral sex. T.V.L. * * * In State v.
Dizzy Duck, 1994 WL 21260 (Jan. 18), the Michigan Court of
Appeals affirmed a trial judge's refusal to shut down Dizzy Duck,
an heterosexual adult entertainment establishment that provides
nude female dancers, "lap dancing," and a Fantasy Room where men
can masturbate while watching women perform erotic dances behind
a plexiglass screen. It was also charged that solicitation for
prostitution took place on the premises. While enjoining the
continuation of particular conduct under the nuisance laws, the
trial judge denied the prosecutor's request to shut down the
establishment. The appeals court held there was no abuse of
discretion, adopting a vary narrow definition of the statutory
terms "lewdness, assignation or prostitution." A.S.L.
Law & Society Notes: National
For the first time, the federal government has adopted
legislation that bans sexual orientation discrimination. The
earthquake relief measure to assist victims in the Los Angeles
area contains a provision forbidding discrimination in the
distribution of aid money on the basis of sexual orientation (in
addition to other categories normally found in anti-
discrimination laws). The inclusion of sexual orientation was
not controversial; it came as part of an amendment adopted
primarily to bar provision of federal aid to "illegal aliens,"
according to the New York Times. * * * On Jan. 27, President
Clinton nominated Prof. Deborah Batts of Fordham Law School, a
member of LeGaL and the Association of the Bar of the City of New
York's Committee on Lesbians and Gay Men in the Legal Profession,
to be a U.S. district judge for the Southern District of New
York. The nomination was recommended by U.S. Senator Daniel P.
Moynihan. * * * The U.S. Office of Personnel Management, the
government agency responsible for federal personnel policy
administration, wrote to U.S. Rep. Barney Frank of Massachusetts
on Jan. 26 affirming that sexual orientation discrimination
violates federal personnel policies, and specifying methods
available for federal employees to pursue grievances. The letter
from OPM Director James B. King noted that such claims could be
brought to the Merit Systems Protection Board if they involve
major disciplinary actions; otherwise, claims can be brought to
the Office of Special Counsel, an independent agency authorized
to seek corrective action from MSPB involving allegations of
prohibited personnel practices. King wrote that union-
represented federal employees can grieve discrimination claims
under their collective agreements. King's letter responded to an
inquiry sent by Rep. Frank in November. * * * U.S. The Interior
Department issued a memo Jan. 26 adding "sexual orientation" to
its non-discrimination policy, but stating that this addition
applied only to the department's employment policies. This was
part of a compromise negotiated with Rep. Frank, who criticized
the department in December when it issued a policy banning
discrimination based on any "nonmerit factor" without specifying
sexual orientation. The department was concerned that an
explicit sexual orientation policy might require it to bar the
Boy Scouts of America, which maintains an anti-gay policy, from
using national parks. Under the Frank compromise, the BSA can
still hold events in the parks, but the department will have an
explicit nondiscrimination policy for its gay employees. * * *
The Senate Armed Services Committee announced it would hold
further hearings on gays in the military, in response to
complaints by committee member Dan Coats (R.-Ind.) that proposed
regulations issued by the Pentagon were too permissive. The
Pentagon delayed putting the regulations in effect as a result of
Coats' objections, which were also endorsed by Strom Thurmond
(R.-S.C.). * * * There were press reports late in February that
the Clinton Administration would waive immigration rules barring
HIV-infected persons from the U.S. for those travelling to New
York for Gay Games IV in June. A.S.L.
Law & Society Notes: States
Washington State may be the next to pass a gay rights law. The
state House of Representatives passed HB 1443 early in February,
and the Senate held a hearing on the measure Feb. 17, at which
the former chief of staff for the State Senate Republicans, John
Rico, came out and testified as a gay man with AIDS in support of
the bill. Although Democrats control the Senate and committee
approval is expected, press observers speculated that the Senate
leadership may block a floor vote, in light of petitions
circulating to place two anti-gay initiatives on the ballot. See
Seattle Times of Feb. 18, p. B1. * * * Women who served as jurors
in the Menendez murder trials in California said that some men on
the juries were obsessed with the possibility that Erik Menendez
was gay, and allowed homophobia to influence their holding out
for a first-degree murder verdict, according to an Associated
Press report carried nationally. Both deadlocked juries were
apparently split along gender lines, with women jurors favoring a
manslaughter conviction and male jurors favoring murder
convictions. The prosecutors vowed to retry both of the Menendez
brothers for the murder of their parents. * * * The New York Law
Journal reported that the New York State Family Court Judges
Association adopted a resolution urging its members not to
socialize in establishments that discriminate on the basis of
sexual orientation. * * * A new reproductive technology note: In
McDonald v. McDonald, NYLJ, 3/2/94 (N.Y.App.Div., 2nd Dept., Feb.
22), the court held that a mother who bears children from in
vitro fertilization using a donated eggs is nonetheless fully a
mother for purposes of custody and visitation determinations,
even though she is technically not the "genetic" mother of her
children. The court rejected the father's argument that he had
superior rights to custody just because the mother's eggs were
not used to conceive their twin daughters. * * * Finally,
textbook publishers with backbone! The Austin (Texas) American
Statesman reports that Holt, Rinehart & Winston and Glencoe,
publishers of health texts, have threatened to refuse to supply
textbooks for Texas public schools if state School Board
officials insist on catering to the religious right by requiring
deletion of all references to condoms, sexually transmitted
diseases, AIDS prevention, teen pregnancy, and homosexuality.
The action came in response to pending resolutions before the
Board to require that textbooks delete definitions of various
sexual terms (such as semen, ejaculation, vagina, and penis) and
exclude diagrams showing genitals or illustrating the
reproductive system. * * * A New Hampshire legislator,
anticipating problems that might arise should gay marriage become
legal in Hawaii, has introduced a bill to prevent such marriages
from being recognized in his state. David Wheeler testified
before the state Senate Judiciary Committee that he was "not
against homosexuality," but wanted to be sure that New Hampshire
did not inadvertently end up treating same-sex marriages as
valid. A.S.L.
International Notes
The New York Times reported that the British Parliament voted to
lower the age of consent for gay sex involving males from 21 to
18. The age of consent for lesbian sex remains 16. Gay rights
groups in England quickly mounted protests against the
discrimination, and vowed to challenge the differential age of
consent in the European Court of Human Rights. * * * Surprise,
surprise!! Pope John Paul II has come out strongly against gay
marriage! Never one for social innovation in matters of personal
lifestyle, the Pope was apparently provoked by news reports that
gay couples can now obtain marriage licenses in several Italian
cities, and that the European Parliament is considering
affirmative moves on the subject. A.S.L.
AIDS AND RELATED LEGAL NEWS BRIEFS
Manhattan Surrogate Finds Will Codicil by PWA Invalid
New York County Surrogate Court Judge Renee Roth has found
invalid a codicil to a will executed by a person with AIDS
shortly before his death. In Estate of Robert Halsband, NYLJ,
2/15/94, p. 25, col. 3, Surrogate Roth had to consider claims by
two charitable beneficiaries that a codicil leaving a substantial
part of the estate to a couple who were caring for an elderly
scholar in the final stages of AIDS was executed under undue
influence at a time when the testator lacked testamentary
capacity. According to the decision, Robert Halsband was "a
noted scholar of English literature" who died from AIDS in
October 1989 at age 75. In a will dated May 15, 1989, Halsband
left his extensive book collection to Columbia University and
divided the balance of his estate between Columbia and New York
University. In the codicil, executed August 3, 1989, Halsband
left a major asset of the estate, his cooperative apartment, to
Sameh Elrashidy, a home care attendant who had taken care of him
for the preceding two months, and Elrashidy's wife. Roth's
opinion sets out an extensive review of the evidence, which
included a videotape of Halsband made about the time of the
codicil execution, and the testimony of a variety of witnesses,
all of which led to the conclusion that by the time the codicil
was drafted and signed, Halsband was not thinking independently
and Elrashidy was apparently directing his every move. As Roth
described the man in the videotape: "a man who did not
participate in the conversation; a man who could not retain a
thought for any length of time; a man who did not speak a
complete sentence." Roth found that there was a "confidential
relationship" between Halsband and Elrashidy, such that the
burden fell on Elrashidy to show that the 11th-hour codicil
favoring him was not the result of undue influence, and that
Elrashidy failed in this burden. Significantly, the opinion is
carefully written to avoid any untoward dicta about the capacity
of people with AIDS to make wills; rather, it concentrates on the
specific circumstances under which the codicil was drafted and
executed to determine that in this instance the person with AIDS
could not make a valid codicil. A.S.L.
South Dakota Supreme Court Upholds Lengthy Sentence for HIV-
Infected Man
In Hopfinger v. Leapley, 1994 WL 46918 (Feb. 16), the South
Dakota Supreme Court upheld a 15-year prison sentence imposed on
a gay, HIV-infected man who pleaded guilty to robbery and
aggravated assault on the assurance of his court-appointed lawyer
that he would only have to serve four and a half years. After
spending the evening drinking at an Aberdeen bar, Henry Hopfinger
went back to his hotel room with Gordon Roettele for sex. At
some point, Roettelle got a little rough and Hopfinger grabbed a
pair of scissors and stabbed Roettele several times, inflicting
serious wounds. Then he grabbed Roettele's jewelry, money and
car keys and fled in Roettele's car. He was later apprehended
and charged with robbery, aggravated assault and grand theft.
His court-appointed attorney feared he would do poorly before a
jury as a gay man with HIV, and advised him to plead to robbery
and assault, upon which the 15 year sentence was imposed. On a
habeas petition, Hopfinger argued ineffective assistance of
counsel, asserting that any more than a five to six year sentence
would be a death sentence for him. The court found that
Hopfinger was an ex-con with experience in the Florida prison
system who was familiar with the working of plea-bargaining. The
court concluded that Hopfinger had received effective counsel and
"a fair plea bargain with a reliable result." A.S.L.
Court of Veterans Appeals Remands HIV Case; Concurring Judge
Questions "Service Connection" for Gay Veterans
In ZN v. Brown, 1994 WL 32184 (Feb. 4), the U.S. Court of
Veterans Appeals vacated a decision of the Board of Veterans
Appeals which had denied entitlement to veterans benefits to a
veteran with AIDS who claimed to have contracted HIV while
stationed in the New York metropolitan area in the early 1980s.
The court found that the board had failed without discussion to
account for evidence from several health professionals opining
that the veteran had probably contracted his HIV infection during
his term of military service, and had failed to cite any medical
evidence in the record to support its conclusion that the HIV
infection post-dated the veteran's service. Under sec. 5107(b)
of the governing statute, the board is required to give the
"benefit of the doubt" in determining service connection where
"there is an approximate balance of positive and negative
evidence;" in this case, held the court, the board had failed to
do that, merely making conclusory statements.
Concurring, Judge Mankin pointed out that the Veterans Benefits
Manual adopts the approach of not considering HIV infection to be
evidence of "willful misconduct" without further evidence of "the
probable method of contracting the illness." Mankin found this
"troubling because it condones conduct which the Congress has
declared to be illegal. . . The VA may not condone activity
through its regulations which the Congress has proscribed. . .
For a disability to be service connected, it must have been
incurred in the line of duty. A disability incurred during
active military service will be considered to have been incurred
in the line of duty unless the disability was the result of the
claimant's own willful misconduct. . . Accordingly, until the
foregoing threshold issue [of causation] is addressed, the
majority's detailed legal discussion is premature. Therefore,
for the foregoing reasons, I concur in the result only." Under
Mankin's line of reasoning, veterans administrators might have to
deny service-connection to all HIV+ veterans who could not show
that they contracted HIV through a transfusion or lawful sexual
activity. IV drug use and "sodomy" are both prohibited by the
Uniform Code of Military Justice. A.S.L.
Dentist Personally Liable Under ADA for AIDS Discrimination
A dentist who is the owner, president, and sole director of the
professional dental corporation under which he practices is not
shielded from personal liability under the Americans with
Disabilities Act for refusing to treat patients with HIV. In
United States v. Morvant, 1994 U.S. Dist. LEXIS 826 (E.D.La. Jan.
26), the U.S. Attorney sought injunctive and monetary relief
against a dentist on behalf of two HIV+ patients, as well as
unnamed patients, whom the dentist had refused to treat. Judge
Patrick Carr found that defendant Morvant himself fell personally
within the "broad sweep" of the ADA and denied the dentist's
motion to dismiss the suit: "Defendant argues that because he
practiced dentistry as a professional dental corporation, he is
not subject to individual liability, and cannot be sued
personally. He is mistaken." The court noted that the ADA's
remedial purposes would be subverted by allowing a corporate
entity to shield those "most responsible for discriminatory acts
and policies." It observed further that defendant was the sole
shareholder of the corporation alleged to have engaged in
discrimination, and was himself responsible for the allegedly
discriminatory decision.
The dentist had also moved to strike the government's request for
monetary damages on behalf of one of the patients named in the
complaint because the patient was deceased. Since the ADA is
silent as to whether damages awards survive a complainant's
death, the court applied Louisiana law (which permits damages to
survive) in favor of the deceased survivors, for one year from
the date of death. Morvant further moved to strike the
government's claim for monetary damages on behalf of "other
aggrieved persons" since they were not named specifically in the
complaint. However, since the ADA authorizes recovery against
those exhibiting a "pattern or practice of discrimination", the
court said the government is not required to plead that each and
every person for whom monetary damages were claimed had been a
victim of the discriminatory practice. The government's burden
was satisfied by a prima facie showing that a discriminatory
policy existed. R.B.
HIV Transmission Litigation Updates
The U.S. Court of Appeals, 10th Circuit, held that a federal
prisoner who claims to have acquired HIV infection from being
raped by his cellmate does not have a valid claim against the
government under the Federal Torts Claims Act. Richey v. U.S.,
1994 WL 44838 (Feb. 16)(unpublished disposition). The court
found that prison officials had not breached any duty of care to
Richey, rejecting the claim that a bare assertion that Richey was
infected as a result of a "nonconsensual sexual assault" was
sufficient by itself to establish negligence. A.S.L. * * * Judge
Ronald L. Buckwalter (U.S.Dist.Ct., E.D. Pa.) dismissed three
counts of plaintiff Sallie Smith's HIV transmission suit against
the Reading Hospital and Medical Center. Smith v. American Red
Cross, Keystone Community Blood Bank, Inc. and the Reading
Hospital and Medical Center, 1994 U.S. Dist LEXIS (Jan. 27). The
hospital administered blood and blood products to Smith in 1984
during coronary bypass surgery. Smith alleged that the blood and
blood products were contaminated with HIV; she was diagnosed with
HIV in December, 1991, and died of AIDS in September, 1993. Smith
sued in state court on theories of negligence, strict liability,
breach of warranty, informed consent battery, wrongful death, and
survival action. The Red Cross removed the case to federal court
under 36 U.S.C. sec. 2 and 28 U.S.C. secs. 1441, 1446. Reading
then moved under Rule 12(b)(6), arguing that strict liability,
breach of warranty and informed consent battery theories do not
apply to hospitals in Pennsylvania, particularly in this case.
Pennsylvania law includes a Blood Shield Statute, 42 Pa.C.S.A.
sec. 8333, which provides that "[n]o person shall be held liable
for the death, disease or injury resulting from the lawful
transfusion of blood, blood components or plasma derivatives . .
. except upon a showing of negligence on the part of such
person. Specifically excluded . . . is any liability by reason
of . . . strict liability or implied warranty or ny other
warranty not expressly undertaken . . . . " The court found that
Reading Hospital is a "person" within the meaning of the statute,
which unambiguously precludes causes of action against a hospital
based on strict liability and breach of warranty. The court
determined that a hospital has been found liable under
Pennsylvania law for informed consent battery in only one case,
in which the patient participated in an experimental clinic for
eye surgery. In that case, the hospital had assumed a duty to
inform the patients who participated in the experimental clinic,
and the hospital had specifically intended that the patient come
into contact with defective lenses that were part of the
experiments. By contrast, Smith did not plead that 1) she was
part of an experimental clinic, 2) that Reading had assumed any
duty to inform Smith of the risks of her surgery, or 3) that
Reading had specifically intended that Smith come into contact
with HIV-infected blood. Similar reasoning had been applied in
another suit against a hospital arising out of a transfusion of
HIV-infected blood, Jones v. Philadelphia College of Osteopathic
Medicine, 813 F.Supp. 1125 (E.D.Pa. 1993). Under this reasoning,
Smith's claim of informed consent battery was dismissed. M.L. *
* * In an unpublished opinion, New York State Supreme Court
Justice Carol E. Huff has dismissed the complaint in Plaza v.
Estate of Wisser, No. 121575/93 (N.Y. Sup. Ct., N.Y. Co., Dec.
23, 1993). Plaza is Wisser's surviving life partner. Wisser, an
attorney, died from AIDS in 1992, having made out an unexecuted
will leaving a quarter of his assets to Plaza. Since he died
intestate, his entire estate, including the cooperative apartment
in which the men lived, went to Wisser's parents. Plaza
continued to live in the apartment for some time rent-free,
receiving monthly payments from the Estate, but the payments
ceased after a time. Plaza sued the estate and Wisser's parents,
co-administrators, claiming he was infected with HIV by Wisser at
a time when Wisser had not yet disclosed his HIV status to Plaza,
and that the estate owed Plaza various damages on contractual
theories based on an alleged promise by the parents to allow
Plaza to continue living in the apartment in exchange for Plaza
having quit his job to take care of Wisser during his illness.
Huff found that the complaint "does not contain any actionable
claims." In a brief, conclusory paragraph, Huff asserts that
Plaza's claims he was deceived by Wisser were "belied by his
concession of knowledge of pertinent information," and found that
fraud and battery claims were time-barred. Huff also found that
there was no legal consideration given by Plaza in exchange for
an alleged promise to let him remain in the apartment "with all
expenses paid," asserting that he had failed "to establish any
damages incurred due to his reliance on their short-lived
benevolence." Huff also dismissed an intentional infliction of
emotional distress claim against the parents, finding that their
behavior was not "extreme and outrageous." Plaza's attorney,
Judith Ellen Stone, plans an appeal, arguing that Huff's ruling
fails to deal appropriately with the negligence claim, both as to
the asserted time-bar and on the merits. A.S.L.
Other AIDS & Related Litigation Notes
In a ruling that implicitly strengthens protection against
employment discrimination for HIV+ employees of federal
contractors under sec. 503 of the Rehabilitation Act, Acting
Assistant Secretary of Labor John R. Fraser overruled an
administrative law judge of the Office of Federal Contract
Compliance Programs (OFCCP) and held that Commonwealth Aluminum
violated sec. 503 by rejecting applicants for employment on the
basis of pre-hire physical examinations that revealed a variety
of latent conditions that were not symptomatic. OFCCP v.
Commonwealth Aluminum, No. 82-OFC-6 (Feb. 10), full text in 1994
Daily Labor Report (BNA) No. 31, at D-1. Fraser ruled that the
employer could not refuse to employ such individuals unless it
could show a "reasonable probability of substantial harm" if they
were to work at the job for which they applied. A.S.L. * * *
Christopher Hennelly, a gay man who was beaten up by police
officers while he was serving as a "peace marshall" at an ACT-UP
demonstration, has agreed to a $350,000 settlement in his federal
civil rights suit against the City of New York. City attorneys
were quoted in the New York Times as stating the city settled
because it expected to lose at trial. Hennelly sustained serious
permanent injuries in the police assault. Charges filed against
him by the police were dismissed by a state criminal court judge,
who accused the police of attacking the demonstrators "without
any apparent provocation," based on a videotape of the incident.
A.S.L. * * * Ron Glasser, a San Francisco resident who has AIDS,
filed suit against Orkin Exterminating Co. in San Francisco
Superior Court in February, claiming that Orkin was refusing to
provide extermination service for his apartment out of fear that
fleas might spread AIDS to the exterminator's employees. Glasser
claimed that appointment were repeatedly canceled, and that a
company service manager told him that "just as insects had spread
the Black Death in the Middle Ages, AIDS could be transmitted by
insects and that he wouldn't put his workers in danger.<170)
Glasser claimed unlawful discrimination on the basis of sexual
orientation and disability, and also appended a claim for
emotional distress damages. An Orkin spokesperson told the San
Francisco Chronicle (Feb. 17) that the company had contacted the
CDC for reassurance that fleas don't spread AIDS, and had
subsequently discharged the employee who refused to provide
service to Glasser. A.S.L.
HIV Confidentiality Legal Notes
The N.Y. State Appellate Division, 3rd Department, indicated that
judicial sanctions may not be imposed against the New York
Attorney General for moving to dismiss an appeal from a
determination by the State's AIDS Institute (a division of the
State Department of Health) holding that the State Health
Department did not violate the Public Health Law when it issued a
press release disclosing the HIV sero-negative status of an
employee who had been splashed with blood at her workplace. In
O'Grady v. McBarnette, 1994 N.Y. App. Div. LEXIS 840 (Feb. 3),
the Appellate Division noted that the state Supreme Court had
extensively criticized the AG's motion to dismiss and had imposed
sanctions and costs. Subsequently, a stipulated settlement
between the parties removed the action from the courts and mooted
an appeal. Nonetheless, the Appellate Division observed that the
sua sponte imposition of sanctions against the AG would not be
justified since the motion to dismiss was made pursuant to an
express statutory provision and that an inquest on the amount of
the sanctions would not satisfy the requirement of notice and an
opportunity to be heard. R.B. * * * A police chief has been held
not to be within the class of persons prohibited from disclosing
confidential HIV-related information under Pennsylvania's
Confidentiality of HIV-Related Information Act. Doe v. Township
of Robinson, 1994 Pa. Commw. LEXIS 43 (Feb. 3, 1994), concerned a
police officer who may have been exposed to HIV-contaminated
blood while on duty, in the course of administering
cardiopulmonary resuscitation. He informed his superiors of the
possible exposure, and they subsequently ordered him to undergo
testing. The officer brought suit when his supervisor circulated
a memorandum detailing the incident to others in the department
and disclosing the officer's current testing status. The suit
alleged specific violations of the Confidentiality Act as well as
invasions of privacy in tort. The Commonwealth Court of
Pennsylvania affirmed the defendant township's demurrer to the
complaint, finding that since the police chief did not provide
health or social services, neither he nor the township was an
"individual health care provider" covered by the Confidentiality
Act. The lower court had not addressed the merits of the
invasion of privacy claims since it had disposed of the matter
under the Confidentiality statute and not under tort law. The
Commonwealth Court, in an opinion by Judge Bernard McGinley,
concluded that plaintiffs' failure to file a statement of matters
complained of, as requested by the lower court pursuant to local
procedure, effectively waived their right to present the claims
for review. Plaintiffs argued that the record was sufficient to
permit effective appellate consideration. However, since the
lower court gave no reasons for dismissing the invasion of
privacy claims, and since a statement of matters complained of
was not filed, the Commonwealth Court concluded that it was
unable to render meaningful appellate review of the privacy
claims and considered them waived pursuant to the procedural
rules. R.B. * * *
AIDS & Society Notes
Philadelphia, the film about a lawyer with AIDS who sued his
former law firm alleging discriminatory discharge, is having
interesting ripple effects. On Jan. 31, the family and estate of
Geoffrey Bowers, a New York attorney who died from AIDS in 1987
after suing Baker & McKenzie over his discharge, sued the film-
makers for $10 million, claiming the film was based on Bowers'
life and case. On Jan. 25, the Washington Post ran an article
about how the film was causing political problems for Senator
Howard Metzenbaum's son-in-law, Joel Hyatt, the head of Hyatt
Legal Services and a declared candidate to succeed his father-in-
law as U.S. Senator from Ohio in this year's election. Hyatt's
organization was the defendant in Cain v. Hyatt, 734 F.Supp. 671
(E.D.Pa. 1990), a case involving a Philadelphia lawyer who won
his lawsuit claiming he was unlawfully fired because he had AIDS.
When the film opened, many press commentators mentioned the Cain
case as being an inspiration for the movie, and the Ohio
Republican party is running with the story. Director Jonathan
Demme and his collaborators on the movie have stated all along
that its plot is not based on any one case. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
ANNOUNCEMENTS
Position Openings:
The ACLU of Illinois seeks an attorney with substantial
litigation experience to be director of its Gay & Lesbian Rights
Project. Litigation responsibilities include direct
representation and acting as resource for cooperating attorneys
in significant lesbian and gay rights cases. Attorneys also
actively participate in ACLU's legislative and public education
programs. Salary commensurate with experience. ACLU of Illinois
is an equal opportunity - affirmative action employer. Send
resume, law school transcript and writing sample to Harvey
Grossman, ACLU, 203 N. LaSalle St., Suite 1405, Chicago, IL
60601.
Educational Programs & Conferences:
The Practising Law Institute in New York is offering a four-part
course on Legal Issues Facing the Non-Traditional Family on
Wednesdays, April 13, 20, 27 and May 4 from 6 to 8 p.m.. The
all-star faculty includes leading practitioners from the private
bar and public interest organizations, and is co-chaired by Jane
E. Booth, Director of Litigation of the Legal Aid Society of New
York City, and Ruth E. Harlow, Associate Director of the ACLU's
Lesbian/Gay Rights Project. The registration fee (which includes
a copy of the course handbook) will be $99 (10% discount for PLI
members). The handbook will also be available for direct
purchase at $70. To register or order the handbook, call PLI at
212-765-5710. This is Seminar No. D8-8873. It will be held at
PLI's NYC training center: 810 7th Avenue at 53rd St.
The Harvard Civil Rights-Civil Liberties Law Review and HLS
Lambda will co-host a one-day conference on Saturday, April 9, on
gay and lesbian legal issues, and the Review will publish a
symposium issue to mark the 25th anniversary of Stonewall. The
conference will feature several noted legal academics and
movement attorneys. Early registration is $40 for non-students
and $5 for students before March 24; $50 and $10 after the
deadline. For information, call the CR-CL office at 617-495-
4500, or write CR-CL, Harvard Law School, Cambridge, MA 02138.
N.Y.U.'s Office of Special Programs is offering a special
graduate course in Human Sexuality of three weeks in New York and
three weeks in Copenhagen this summer. For full details, call
about "Sexuality in Two Cultures", 212-998-5090.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Alldridge, Peter, Sex, Lies and the Criminal Law, 44 Northern
Ireland Legal Q. 250 (Autumn 1993).
Anderson, Anthony, An Analysis of NSW Attorney-General's Anti-
Discrimination (Amendment) Bill 1993, 3 Australasian Gay &
Lesbian L.J. 39 (Oct. 1993).
Crittenden, Jack, Fighting for Gay Rights, Nat'l Jurist,
February/March 1994, 10-17 (lesbian and gay rights activities on
law school campuses).
Fraser, David, Oral Sex in the Age of Deconstruction: The Madonna
Question, Sex and the House of Lords, 3 Australasian Gay &
Lesbian L.J. 1 (Oct. 1993).
Fullerton, Maryellen, A Comparative Look at Refugee Status Based
on Persecution Due to Membership in a Particular Social Group, 26
Cornell Int'l L.J. 505 (1993).
Lesbian and Gay Legal Rights Service, The Bride Wore Pink: Legal
Recognition of Our Relationships, 3 Australasian Gay & Lesbian
L.J. 67 (Oct. 1993).
Loewy, Arnold H., Obscenity, Pornography, and First Amendment
Theory, 2 William & Mary Bill of Rts. J. 471 (Winter 1993).
Morgan, Shaughn, Legal Recognition of Gay and Lesbian
Relationships, 3 Australasian Gay & Lesbian L.J. 57 (Oct. 1993).
Rubenfeld, Abby R., Sexual Orientation and Custody:
Constitutional Protections Are Often Denied Same Sex Parents, 21
Hum. Rts. (ABA) No. 1, 14 (Winter 1994).
Stewart, Blair, New Zealand Immigration Law and Gay and Lesbian
Couples, 3 Australasian Gay & Lesbian L.J. 30 (Oct. 1993).
Ulmschneider, Georgia Wralstad, The Supreme Court, the First
Amendment, and Anti-Sex-Discrimination Legislation: Putting
American Booksellers Association, Inc. v. Hudnut In Perspective,
32 Duquesne L. Rev. 187 (Winter 1994).
Student Notes & Comments:
Breuner, Andrew J., Expression by Association: Towards Defining
an Expressive Association Defense in Unruh-Based Sexual
Orientation Discrimination Actions, 33 Santa Clara L. Rev. 467
(1993).
Minter, Shannon, Sodomy and Public Morality Offenses Under U.S.
Immigration Law: Penalizing Lesbian and Gay Identity, 26 Cornell
Int'l L. J. 771 (1993).
Ohlweiler, John Nelson, The Principle of Deference: Facial
Constitutional Challenges to Military Regulations, 10 J. Law &
Politics 147 (Fall 1993).
Prokop, Donna, Controversial Teacher Speech: Striking a Balance
Between First Amendment Rights and Educational Interests, 66 S.
Cal. L. Rev. 2533 (September 1993).
Recent Case, Family Law -- Adoption -- Massachusetts Allows
Biological Mother and Her Lesbian Partner Jointly to Adopt Child,
107 Harv. L. Rev. 751 (January 1994).
Swanson, Hollace S.W., Donor Anonymity in Artificial
Insemination: Is It Still Necessary?, 27 Col. J. L. & Soc. Prob.
151 (Fall 1993).
Specially Noted:
The Association of the Bar of the City of New York has published
the Report on the Experience of Lesbians and Gay Men in the Legal
Profession prepared by its Committee on Lesbians and Gay Men in
the Legal Profession, at 48 The Record of the Association of the
Bar 843 (November 1993). The report, based on a survey of
several hundred lesbian and gay attorneys, is accompanied by
tables showing the breakdown of responses to a detailed
questionnaire. Copies of the November issue of The Record can be
obtained for $10 from the Association's publications manager,
Lilou Irvine, at 212-382-6651. * * * Gay Issues in the Workplace,
by Brian McNaught (St. Martin's Press, 1993), will prove useful
to those advocating enlightened corporate policies. McNaught is
a workplace diversity trainer who specializes in programs for
large corporations, and the book is geared in that direction.
Legal references are cursory; the focus is on human resources
issues, including a detailed description of how a diversity
training program is conducted. Appendices include extensive
resource lists. * * * Clark Boardman Callaghan has published a
loose-leaf treatise on Hate Crimes Law by Lu-in Wang (ISBN 0-
87632-917-2), which will be supplemented annually. For
information, call 1-800-221-9428. * * * The Australian Gay and
Lesbian Law Journal has amended its name with volume 3 (October
1993), and will be known henceforth as Australasian Gay and
Lesbian Law Journal. * * * The 1993 decision of the European
Court of Human Rights in Modinos v. Cyprus, No. A/259, holding
that Cyprus's law penalizing consensual homosexual sex between
adults violates Article 8 of the European Charter of Human
Rights, can be found in vol. 16, part 5 (Nov. 1993) of European
Human Rights Reports. * * * The National Lesbian and Gay Law
Association (NLGLA) has published a 1993-1994 Membership
Directory, listing members in 41 states, the District of
Columbia, Puerto Rico, and Canada. Copies are available to non-
members for $10, from NLGLA, Box 77130, National Capital Station,
Washington, D.C. 20013-7130. Inquiries about membership in NLGLA
can be directed to the same address.
Symposia:
23 J. Arts Mgt., L. & Soc. No. 3 (Fall 1993), features a special
section consisting of four articles about the controversy of
public funding for the arts (inspired in part of disputes about
the National Endowment for the Arts' funding, or defunding, of
homoerotic art). Articles include: David B. Pankratz,
Contemporary Art, Society, and Public Policies; Steven C. Dubin,
Arresting Images: Impolitic Art and Uncivil Actions; Judith
Tannenbaum, Public Funding for the Arts: The Chill After the
Storm; and Jill Bond & Jennifer Hutchins, Arresting Images: Why
We Need to Recast the Debate.
AIDS & RELATED LEGAL ISSUES:
Barr, Judith K., and Robert A. Padgug, Employers and AIDS:
Meeting the Health Benefit Needs of People With HIV Disease, 3
Cornell J. L. & Pub. Pol. 83 (Fall 1993).
Bayer, Ronald, Are Limits on AIDS-Related Health Benefits
Ethical?, 3 Employment Testing L. & Pol. Rep. No. 1, 1 (January
1994).
Closen, Michael L., Mary Anne Bobinski, Donald H.J. Hermann, John
F. Hernandez, Gene P. Schultz, and J. Kelly Strader,
Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure
Laws, 46 Ark. L. Rev. 921 (1994) (edited transcript of panel
discussion at 1993 Association of American Law Schools annual
meeting).
Court, Patricia G. & Linda Karr O'Connor, A Selected Bibliography
on AIDS and Health Insurance, 3 Cornell J. L. & Pub. Pol. 109
(Fall 1993).
Eisenstat, Steven, Capping Health Insurance Benefits for AIDS: An
Analysis of Disability-Based Distinctions Under the Americans
With Disabilities Act, 10 J. L. & Politics 1 (Fall 1993).
Hryce, Michel, The Legal Protection of Privacy and HIV/AIDS, 3
Australasian Gay & Lesbian L.J. 46 (Oct. 1993).
Isbell, Michael T., AIDS and Access to Care: Lessons for Health
Care Reformers, 3 Cornell J. L. & Pub. Pol. 7 (Fall 1993).
Lee, Barbara A., Reasonable Accommodation Under the Americans
With Disabilities Act: The Limitations of Rehabilitation Act
Precedent, 14 Berkeley J. Emp. & Lab. L. 201 (1993).
Mullen, Robert L., The Americans With Disabilities Act: An
Introduction for Lawyers and Judges, 29 Land & Water L. Rev. 175
(1994).
Padgug, Robert A., Gerald M. Oppenheimer, and Jon Eisenhandler,
AIDS and Private Health Insurance: A Crisis of Risk Sharing, 3
Cornell J. L. & Pub. Pol. 55 (Fall 1993).
Schuck, Peter H., Rethinking Informed Consent, 103 Yale L.J. 899
(Jan. 1994).
Shalala, Donna E., Statement from the Secretary of Health and
Human Services, 3 Cornell J. L. & Pub. Pol. 1 (Fall 1993)
(introduction to symposium on paying for AIDS care).
Student Notes & Comments:
Bartrum, Thomas E., Fear, Discrimination and Dying in the
Workplace: AIDS and the Capping of Employees' Health Insurance
Benefits, 82 Ky. L. J. 249 (1993-94).
Case, Donna J., Condom or Not, Rape is Rape: Rape Law in the Era
of AIDS -- Does Condom Use Constitute Consent?, 19 U. Dayton L.
Rev. 227 (Fall 1993).
Comment, Does the Americans With Disabilities Act of 1990 Impose
an Undue Burden on Employers?, 32 Duquesne L. Rev. 269 (Winter
1994).
Fanning, Gary L., Jr., Countering Workplace Fear and
Misapprehension Through Legal Protection: Options for the HIV-
Positive Public Employee, 33 Washburn L.J. 186 (Fall 1993).
Gries, Alan R., New York State School Boards Ass'n v. Sobol: A
Commendable Attempt to Apply Confusing Establishment Clause
Standards, 38 Villanova L. Rev. 759 (1993) (constitutionality of
state mandate that representatives of religious groups be
included in public school AIDS advisory boards).
Reilly, Rosemary G., Combating the Tuberculosis Epidemic: The
Legality of Coercive Treatment Measures, 27 Col. J. L. & Soc.
Prob. 101 (Fall 1993).
Thompson, Melissa Moore, Enhanced Risk of Disease Claims:
Limiting Recovery to Compensation for Loss, Not Chance, 72 N.C.
L. Rev. 453 (Jan. 1994).
Symposia:
The Dual Epidemics of Tuberculosis and AIDS, 21 Journal of Law,
Medicine & Ethics, Nos. 3-4 (Fall-Winter 1993). All of the 16
brief articles in this symposium emphasize the problems of coping
with tuberculosis in HIV-infected populations. Articles have not
been listed separately above. * * * Insuring Health Care for
Persons With AIDS, 3 Cornell J. L. & Pub. Pol. No. 1 (Fall 1993)
(individual articles listed above).
Book Reviews:
Dryovage, Mary, Compliance and Litigation Resources for
Implementing the Americans With Disabilities Act of 1990, 14
Berkeley J. Emp. & Lab. L. 318 (1993).
Riley, Diane M., Review/Commentary on AIDS and Drug Misuse: The
Challenge for Policy and Practice in the 1990s, edited by John
Strang and Jerry Stimson, 20 Contemporary Drug Problems No. 1,
133 (Spring 1993).
Specially Noted:
The ABA's Section on Urban, State and Local Government has
published AIDS and Government Liability: State and Local
Government Guide to Legislation, Legal Issues, and Liability.
The publication is intended as a guide for government attorneys
dealing with AIDS issues. Copies are available by order from ABA
Order Fulfillment, 312-988-5522.
EDITOR'S NOTE
All points of view expressed in Lesbian/Gay Law Notes are those
of identified writers, and are not official positions of the
Lesbian and Gay Law Association of Greater New York.
Correspondence pertinent to issues covered in Law Notes is
welcome and will be published subject to editing. * * * The staff
list for the February issue of Law Notes inadvertently omitted
Dirk Williams, Student, Northeastern Law School. The staff list
names only those who have contributed to the issue in which they
are listed.